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Leveson, Murdoch hypocrisy and the protection of journalists – a reply to Nick Cohen

By Dr Evan Harris, Associate Director of Hacked Off

Nick Cohen has many qualities as a polemical writer and orator and is a fierce defender of free expression. We have fought many battles on the same side, not least blasphemy abolition, against an over-broad religious hatred law, and libel reform, but he is wrong about Leveson and about the Hacked Off campaign for a free and accountable press.

In an article in the Observer on Sunday 25th January entitled “Rupert Murdoch and the police treat journalists like terrorists” he combines some good points about the hypocritical attitude of the Murdoch press with some bad points about Leveson. He suggests that the prosecution of Sun journalists for paying public officials was, somehow, encouraged by Leveson and is part of a general attack on journalists’ sources.

He is wrong on both points.

There was nothing in the Leveson Inquiry that affected the prosecution decisions of the CPS when it came, to what is alleged to be, large-scale corrupt payments to public officials to help tabloids get “exclusives”. Operation Elveden was well underway by the time Leveson reported, and the Leveson Inquiry steered well clear of dabbling in the specifics of cases under current investigation.

The accused are being prosecuted under a criminal law which existed for decades before Leveson. This is because, strangely enough, bribing police officers or conspiring with corrupt cops, to do corrupt things, has never been considered a good thing by the authorities or by the public. Or even by Sun readers.

In fact Leveson’s recommendations would increase journalists’ protection. Leveson proposed a “first amendment style” statutory protection for the press (recommendation 33). In their pique, this was rejected by the press industry. It was never backed by Nick Cohen either.

Leveson proposed costs protection (even in cases they lose) for news publishers who belong to a self-regulator certified as independent and effective. This would reduce the “chill” of libel claims against investigative journalists that they currently face from their targets. It would actually protect tabloid-style stories about celebrities from well-funded claimants. But the press industry are rejecting that too.

Hacked Off has argued for explicit statutory public interest defences in criminal laws that affect journalists. When our amendment to do just that was debated in the House of Lords last year, Nick Cohen was silent.

The article also contains a number of factual inaccuracies.

First Nick Cohen suggests that The Sun have been prosecuted for paying public servants for stories, some of which “were clearly in the public interest”. Well, there is already what amounts to an effective public interest defence in the offence that the Sun, News of the World, Daily Star and Mirror journalists are facing. If the public official had “reasonable excuse or justification” to conduct himself as he did, then the offence is not made out.

If all the stories cited in the trials to date were public interest block-busters like the ones that Nick Cohen (inaccurately) described then the charges would have been thrown out by the judge after “half-time” submissions of “no case to answer” – which were made in all cases; or the jury would have acquitted. In fact in one of the trials due to be heard again, it was alleged in court that The Sun paid a policeman to supply the name and address of a rape victim.

Second, he says that “prosecutors have yet to convict a Sun reporter”. In fact, one Sun journalist has been convicted in these trials – Nick Parker – in respect of illegally trawling the contents of a mobile phone which was stolen. And a former News of the World journalist has been convicted of corrupt payments to public officials – in the case of a prison officer selling salacious stories on one of the Bulger killers. Another former News of the World journalist has pleaded guilty to conspiracy under the same law.

Third, Nick Cohen (rightly) defends the protection of journalistic sources but in the course of doing so gets his facts wrong. He says that the police agreed “to try to stand up a desperate defence of that proved liar Chris Huhne by seizing all the confidential phone records of the Mail on Sunday newsdesk”. I agree that there should be judicial oversight before journalistic phone records can be seized. Moreover, as the Serious Crime Bill progressed through Parliament, it was a Hacked Off-drafted amendment that was debated, which sought to do just that. But in the Mail on Sunday case I suspect any judge would have granted the police permission to get the records to establish, not the guilt of Huhne as Cohen claims, but whether a judge (Constance Briscoe) had lied in a witness statement and had therefore perverted the course of justice. They did, she had and she was jailed.

Nick Cohen declared “Honourable reporters go to prison to protect their sources” and attacks Rupert Murdoch as the villain while suggesting all other newspaper executives are his victims. But in the Huhne case, the party who was guilty of “shopping sources” was the Sunday Times – and not Rupert Murdoch. Nick Cohen did at the time rightly criticise the journalist and editor at the Sunday Times, neither with whom went anywhere the remotest possibility of prison before handing over Vicky Pryce as their source. It is a pity that he omits to mention that now it does not fit into his MI5/Murdoch conspiracy theory.

And in a recent acquittal of a Sun Reporter for trawling through a stolen mobile phone for salacious stories, it emerged in court that when the mobile was reported as stolen, the Sun immediately shopped their “tipster” to the police without even being asked!

Finally, Nick Cohen and I can, perhaps, agree on this. The bulwark for journalistic source protection in this country is Article 10 the European Convention on Human Rights, brought into English law by the Human Rights Act 1998. When newspaper editors campaign for the repeal of that Act, they should be exposed as the hypocrites they are when they talk about the importance of maintaining source protection.

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